Businesses: ACLU loitering lawsuit could affect our sales 

Peter OsborneBusiness, Headlines


Retail and other businesses are worried about a lawsuit dealing with loitering and homelessness laws.

Sometimes you don’t know what you don’t know.

Take the lawsuit filed July 7, 2023, by ACLU Delaware against Attorney General Kathy Jennings and the city of Wilmington over the state’s solicitation and loitering statutes and Wilmington’s loitering ordinance.

The ACLU claims the lack of specificity in the current statutes opens the door to selective enforcement. 

At the same time, some businesses and property owners worry the ambiguity of the laws or a decision to stop prosecuting violations of the current statutes — could allow homeless people and others to move within five feet of their front doors to solicit.

Scott Kidner, vice chair of legislative affairs for the Central Delaware Chamber of Commerce and a Dover-based lobbyist, said a lack of specificity on this issue could have a significant impact on private property owners, small or large business owners, retailers and even multi-family property owners.  

“It is fundamentally wrong to have the control of your private property superseded by the state for individuals who are not customers or residents or with any connection to the property or the business, Kidner said. 

Store owners already battling retail theft and loss of sales to online shopping also worry about  customers having to walk through people panhandling or loitering near their store entrance.

Since the suit was filed last July on behalf of Food Not Bombs – with the Delaware Continuum of Care, Friendship House and NAACP Delaware added in October – there has been little movement, says ACLU of Delaware Legal Director Dwayne Bensing.

“At this point, there have been no settlement negotiations,” he said last week. “The Attorney General has denied the allegations, and the city has issued a partial motion to dismiss the charges.”

At the heart of it, the ACLU is concerned about selective enforcement of the existing statutes and targeting of minorities and the homeless. 

In October when it added the new plaintiffs, the ACLU said the practices are being “carried out primarily by the Operation Safe Streets program [and include] a history of Fourth and Fourteenth Amendment violations such as unreasonable stops, searches and arrests, as well as racially biased policing.”

“The devil is in the details,” Bensing said, conceding that the statutes as they stand today lack specificity. 

“It’s an easy out for law enforcement to intimidate and harass people who are unhoused or are people of color,” he added. “If the AG was to say the state won’t prosecute, that would make our argument moot. I’m disappointed that they’ve dug in their heels.”

Loitering resolutions

He said there are three ways the issue could be resolved:

  • The state and city settle and publicly agree not to enforce the statutes.
  • The judge declares the statutes unconstitutional.
  • The General Assembly changes the laws.

The General Assembly is considering a so-called Homeless Bill of Rights (HB55) that provides rights for individuals experiencing homelessness, including protections from discrimination while in public and while seeking access to housing, employment and temporary shelter. 

The current version of HB55 is silent regarding concerns by businesses and property owners as to whether the legislation could be revised to specifically allow homeless people and others to move even closer to their establishments and properties.

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Rep. Sean Lynn, a Democrat who represents the Dover area in District 31, is the lead sponsor of HB55. He did not respond to multiple requests for comment that included specific questions about the issue.

“The law is not clear about quasi-public forums and how far away the statutes extend,” Bensing said. “The loitering laws are so broad that business owners may believe they’re already protected by trespassing and harassment statutes. But the statutes that we are challenging don’t address it.”

Quasi-public forums could include places like the Riverfront Development, Christiana Mall or a large grocery store like Giant or Wegman’s.

Kidner compared business issues to problems that could occur in a multi-family housing space.

“How is the landlord to provide ‘quiet enjoyment’ by the tenant of their leased space if the tenant feels threatened or believes their rights as declared in the current [landlord-tenant agreement] have been violated by solicitors who are now able to ‘stand’ where they wish?” he asks.

“If the ACLU is successful in overturning the current statue, this may become one more reason for a business owner to consider going somewhere else where their ability to manage their businesses is respected.”

Bob Older, president and founder of the Delaware Small Business Chamber, said, ““It’s a Catch 22”.  referring to a paradoxical situation in which a person can’t solve a problem because rules governing the solution in some way prevent it.

“People have a right to ask for money. It’s not a race issue,” Older said. “Everyone has the right to help, and people have the right to ask. But it’s a slippery slope. 

“Can they go to the egress area of a fast-food restaurant? Yes. But in front of their door is a problem. You can’t smoke within 10 feet. There’s a designated area, and I’m all for something like that. It’s an eyesore for everyone, with a possibility of confrontation and a concern that customers will go elsewhere.”

Peter Osborne is an experienced business journalist who helps executives and businesses raise their visibility.

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